Smith v. Hardy, 17061
| Decision Date | 07 September 1955 |
| Docket Number | No. 17061,17061 |
| Citation | 88 S.E.2d 865,228 S.C. 112 |
| Parties | C. R. SMITH, Administrator of the Estate of Mary Alice Williams, Respondent, v. Douglas P. HARDY et al., Defendants, of whom Douglas P. Hardy and James M. Bryant are Appellants. C. R. SMITH, Administrator of the Estate of Janare Williams, Respondent, v. Douglas P. HARDY et al., Defendants, of whom Douglas P. Hardy and James M. Bryant are Appellants. |
| Court | South Carolina Supreme Court |
Whaley & McCutchen, Columbia, E. M. Floyd, Jr., Walker E. Anderson, Hartsville, for appellants.
James P. Mozingo, III, John L. Nettles, Darlington, Edward E. Saleeby, Hartsville, Hope, Willcox & Cabaniss, Charleston, for respondent.
Each of these actions was brought to recover damages for alleged wrongful death. They grew out of a collision between a tractor-trailer owned by Douglas P. Hardy and driven by James M. Bryant and an automobile owned by Zachary Williams and driven by his son, John J. Williams, Jr., which occurred February 5, 1953 about 10:45 p. m., on U. S. Highway No. 15, approximately one and a half miles south or southwest of Lydia in Darlington County. Zachary Williams was riding with his son on the front seat of the automobile. His daughters, Mary Alice Williams and Janare Williams, for the alleged wrongful death of whom these actions were brought, were riding on the back seat. All four occupants of the automobile were apparently killed instantly in the collision.
Joined as defendants were Hardy, Bryant and the estates of Zachary and John J. Williams, Jr. It was alleged in each complaint that the death of the plaintiff's intestate was caused by the joint and concurrent negligent, reckless and wilful acts of all defendants. In addition to answering, defendant Hardy filed a cross-complaint against the Zachary Williams and John J. Williams estates, in which he sought to recover for personal injuries and the damage to his truck sustained in the collision. The two actions were tried together and resulted in a verdict in each case in favor of the plaintiff for $40,000 actual and $5,000 punitive damages against all defendants. The trial Judge granted a new trial unless the plaintiff in each action remitted on the record $10,000 actual damages. This was done and judgments entered accordingly. Hardy and Bryant have appealed.
The first question for determination is whether the Court below erred in refusing appellants' motion for a directed verdict upon the grounds (1) that there was no evidence of negligence on the part of appellants, and (2) that the physical facts showed that the collision was due solely to the negligence of John J. Williams, Jr., in driving to the left of the center of the highway.
Appellants were hauling 15,000 lbs. of produce from Pompano, Florida to Baltimore, Maryland. The collision occurred on a curve. The truck was proceeding in a northerly direction and the automobile in a southerly direction. The impact was at the left front of each vehicle, showing an almost head-on collision. The automobile was knocked or pushed back a distance of approximately 41 yards. Both vehicles came to rest in the southbound lane, or on the automobile's side of the road. The concrete portion of the highway was 18 feet wide with a five foot bituminous shoulder on each side. The truck was eight feet wide and the overall length of the tractor and trailer was approximately 45 feet. There is a dispute as to the weather conditions. Several of the respondents' witnesses testified that it was drizzling rain, while the witnesses for appellants stated positively that the weather was clear.
Leverne Woods, a witness for respondents, testified that about 10:30 on the night of the accident, as he stopped his car in Hartsville before entering U. S. Highway 15, he noticed two cars pass; that he then entered this highway and, driving 40 or 45 miles an hour, followed these two automobiles from Hartsville to the place of the accident, a distance of about eight miles; that he drove some 60 to 100 yards behind the car in front of him which traveled about the same distance behind the first car (the one later involved in the collision); that both vehicles ahead of him remained consistently on the right side of the highway; and that just before the accident he saw the lights of a truck coming around a curve in the opposite direction. He further testified:
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The mother of this witness, who was with him in the car, corroborated his testimony. She was positive that the automobile involved in the collision remained on the proper side of the highway and that the truck drove across the center into the automobile.
According to these two witnesses, they stopped their car but remained at the scene only three or four minutes due to the fact that Leverne's mother 'got sick' and fainted after she looked in the automobile and found that all of the occupants were dead. They said that the car which traveled from Hartsville immediately in front of them, carrying an out of state license, stopped but left before they did.
Hardy was asleep in the bunk of the truck when the accident occurred. Bryant, the driver, who said that he approached the curve at a speed of about 45 miles an hour, gave the following version of the accident:
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It will be noted that Bryant's testimony as to the position of the vehicles immediately before the collision is in sharp conflict with that of Leverne Woods and his mother. This presented squarely an issue for the jury as to which vehicle was driving on the wrong side of the road.
We are asked, however, to reject the testimony of respondents' two witnesses above mentioned as contrary to the physical facts revealed by certain photographs of the scene made on the day following the accident. These photographs, offered in evidence by appellants, show markings on the pavement beginning about 18 inches east of the center line and continuing diagnoally across the highway to a point where the truck and automobile stopped on the west side. Appellants' witnesses testified that these marks were made by the tires of the truck and not by those of the automobile. Under all the circumstances we cannot say as a matter of law that the facts mentioned conclusively show that the testimony of Leverne Woods and his mother is false. It was the province of the jury to pass upon the credibility of this and other testimony in the case.
The showing made here is no stronger than that presented in the recent case of Scurry v. International Paper Co., S.C., 88 S.E.2d 256, where we refused to direct a verdict for the defendants upon the ground that the plaintiff's testimony was contrary to the physical facts. We there quoted with approval the following from 20 Am.Jur., Evidence, Section 1183: 'So frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except where they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other.'
We think the trial Judge was clearly correct in refusing appellants' motions for a directed verdict and for judgment non obstante veredicto. The views above expressed also dispose of the contention that the Court erred in not granting a motion for a new trial on the ground that the verdict was contrary to the greater weight of the evidence. This was a matter addressed to the discretion of the trial Judge.
We now turn to the exceptions relating to the admissibility of testimony. The first is that the Court erred in allowing respondents' witness Moore, a commercial photographer, 'to interpret physical facts surrounding the collision.' This witness examined and took pictures of the vehicles both before and after they were removed from the scene. The testimony in controversy is as follows:
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